Chambers v. Marsh

• Decision Date: 24 December 1980
• Docket Number: No. CV79-L-294.,CV79-L-294.
• Citation: 504 F. Supp. 585
• Parties: Ernest CHAMBERS, Plaintiff, v. Frank MARSH, State Treasurer; Robert E. Palmer, Chaplain and Officer of the Nebraska Unicameral; Frank Lewis, John DeCamp, Robert L. Clark, Tom Fitzgerald, Steve Fowler, Howard A. Lamb, Richard D. Marvel, Loran Schmit, and Jerome Warner, in their official capacity as members of the Executive Board of the Legislative Council of the Nebraska Unicameral, Defendants.
• Court: U.S. District Court — District of Nebraska

504 F. Supp. 585

Ernest CHAMBERS, Plaintiff, v. Frank MARSH, State Treasurer; Robert E. Palmer, Chaplain and Officer of the Nebraska Unicameral; Frank Lewis, John DeCamp, Robert L. Clark, Tom Fitzgerald, Steve Fowler, Howard A. Lamb, Richard D. Marvel, Loran Schmit, and Jerome Warner, in their official capacity as members of the Executive Board of the Legislative Council of the Nebraska Unicameral, Defendants.

No. CV79-L-294.

United States District Court, D. Nebraska.

December 24, 1980.

Herbert J. Friedman, Lincoln, Neb., Stephen L. Pevar, ACLU, Denver, Colo., for plaintiff.

Shaner L. Cronk, Asst. Atty. Gen., Lincoln, Neb., for defendants.

URBOM, Chief Judge.

At stake is the practice of having each day's proceedings of the Nebraska Unicameral Legislature open with a prayer by a chaplain who is paid with public funds and of having those prayers published at state expense and distributed to members and nonmembers. I conclude that the Establishment Clause of the First Amendment to the Constitution of the United States is not breached by having the prayers, but is breached by paying the chaplain to say them and by publishing and distributing them.

THE FACTS OF THE CASE

Ernest Chambers is a duly elected state senator of the Nebraska Unicameral Legislature, District 11, a citizen and taxpayer of the State of Nebraska, and is not a Christian.

At the beginning of each session of the Nebraska Unicameral Legislature the Executive Board of the Legislative Council of the Legislature recommends the selection of court officers, one of them being called "chaplain." The selection of the chaplain is provided for by Rule 1, section 2, of the Rules of the Nebraska Unicameral, Officers and Employees, which says:

"In addition, the Legislature shall advise and consent to the recommendations of the Executive Board of the Legislative Council for the following officers: ... Chaplain."

Rule 1, section 21, of the Rules states:

"The Chaplain shall attend and shall open with prayer each day's sitting of the Legislature."

Robert E. Palmer, one of the defendants, has been the duly selected chaplain of the Nebraska Legislature since 1965. His salary is $319.75 per month for each month the legislature is in session. The salary is paid from the general funds of the State of Nebraska and is disbursed by the State Treasurer, the defendant Frank Marsh. The prayers at each day's opening are recorded each day in the Legislative Journal. In the years 1975, 1978 and 1979 prayer books containing selected offerings given during the legislative sessions of those years were prepared pursuant to motions made and approved on the floor of the legislature. Copies of the book were distributed to the legislative membership and to other individuals upon request. Two hundred copies of the 1975 book were printed at state expense totaling $70.01; 200 copies of the 1978 book were printed at state expense totaling $260.40; and 100 copies of the 1979 book cost the state $128.15. Robert E. Palmer is and for a number of years prior to the filing of this action has been an ordained clergyman in the State of Nebraska of the Christian faith, is head of staff of Westminster Presbyterian Church in Lincoln, Nebraska, and has been since 1963.

The defendant Frank Marsh is the duly elected State Treasurer, charged with the payment of public funds as salaries to members of the legislature and particularly to the defendant Robert E. Palmer. The other defendants are members of the Executive Board of the Legislative Council of the Nebraska Unicameral Legislature and are duly elected state legislators.

Other findings of fact, developed as a result of a trial in this court, will be noted as they become appropriate to the discussion throughout this memorandum.

DISCUSSION

I.

The turmoil over the proper interplay between government and religion in America antedates the Constitution and has been continual throughout the Republic's history. The struggle has been to find that decent accommodation which allows full virility of government within its distinct sphere and full virility of religion within its distinct sphere. When the spheres have overlapped, sparks have often flown.

The Constitutional Congress in 1774 opened its session with prayer over the objections of John Jay and John Rutledge based upon the diversity of religious preferences in that body.¹ A decade later the Constitutional Convention in Philadelphia failed to adopt Benjamin Franklin's motion for an opening prayer, but the Congress which emerged from the Convention took on the custom of the Continental Congress of having its sessions opened with prayer and has continued with that custom to this day. It is probably true that the legislatures of each of the fifty states begin each session with an opening prayer, and it has been said that eighteen states, as well as the United States Congress, employ a chaplain or chaplains to give the prayers.² The constitutionality of employment of legislative chaplains by the United States Congress was challenged in Elliott v. White, 57 App.D.C. 389, 23 F.2d 997 (1928), but the case was dismissed on the ground that the plaintiff, as a taxpayer, had no standing to bring the complaint under the rule of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).³

From the beginning of our country's life, friction has come between those who favor and those who disfavor having prayers in legislative chambers by paid or unpaid members of the clergy. New York, for example, had some stormy times. When the state's first constitution was adopted, it stated that all members of the clergy were ineligible for any "civil ... office or place within this state." For about fifty years thereafter no prayer opened the legislative sessions and no chaplains for the legislature were allowed. By statute in 1829, however, payment with civil funds of chaplains for the legislature began by both houses. So many petitions against the practice — whether against the appointments or the paying is not known — were received that a select committee was commissioned to study the matter and report. It did so, urging abolition of any statute authorizing chaplaincies, as being unconstitutional. The legislature repealed the statute authorizing payment of the chaplains, but did not directly resolve the principle of legislative chaplaincies, as such, in the state.⁴

Nebraska's use of a chaplain for opening of its daily legislative sessions began as early as 1855, twelve years before statehood.⁵ The laws of 1867 provided that the chaplain would be a salaried officer or employee of the House of Representatives with the duty of opening the session of each house of the legislature with prayer.⁶ The statutes continuously made provision for a chaplain with that duty until 1973, when the present statute was enacted, declaring that the Executive Board of the Legislative Council was to make recommendations for "such other officers as may be deemed necessary."⁷ The rules of the Nebraska Unicameral since then have required the Executive Board's recommending a chaplain with the duty of attending and opening each day's sitting with prayer.

II.

The Establishment Clause of the First Amendment to the Constitution of the United States is:

"Congress shall make no law respecting an establishment of religion ..."

That clause is made applicable to each state by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). For a state, then, the clause could be said to read, "A legislature shall make no law respecting the establishment of religion." Although a broad statement misses the nooks and crannies, it may be helpful conceptually to say that the clause forbids a legislature from making any law that tends to firm up or support religion or to prefer one branch of religion or one religious belief over another. From that can begin an analysis of the specific features of the practice being challenged here.

In distinction from cases decided by the Supreme Court of the United States under the Establishment Clause, this case springs from a prayer practice that is, for the most part, an internal act — that is, one directed at the governmental unit itself or its own members. The legislature's causing invocational prayers and the prayers themselves are for the legislators' own benefit. Any hearing of the prayers by anyone other than the legislators is quite coincidental. The legislators, during the saying of the prayers, are not in their law-making stance vis-a-vis the public. Such an internal or in-house practice is not well suited to analysis by standards developed for judging practices mandated by governmental bodies upon nonmembers of the bodies, such as prayers and bible reading by or for public school children, as in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), and Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), or posting of the Ten Commandments on the wall of a public classroom, as in Stone v. Graham, ___ U.S. ___, 101 S.Ct. 193, 66 L.Ed.2d 199 (1980), or the use of funds collected from taxpayers to provide financial aid to nonpublic schools, as in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973).

The First Amendment, through the Fourteenth, declares that state legislatures shall "make no law respecting the establishment of religion." It occurs to me that not everything that a legislature does is "making" a "law." It makes a law when it decrees that someone else must do something. I doubt that allowing prayer for or by its own members is "making a law" in any sense. Neither what legislators do for and by themselves nor what a legislature does for and by itself with no significant impact on anyone else is the making of laws. A legislator walks to church for worship; he or she is not thereby making a law. Each of the legislators...